A case of politics in the courtroom


WORLDVIEW:The US supreme court, perhaps even more than Congress, is ‘the decider’ of many political issues

IN 1935 Montana made party endorsements of candidates for judgeships an offence. Although elected, state judges would, the theory went, remain outside the political arena, with judicial independence safeguarded.

Last week, the US ninth circuit court of appeals ruled that the state must stop enforcing the ban. Significantly, its argument was based on the US supreme court’s landmark decision in the 2010 Citizens United case which, in clearing the way for unbridled corporate funding of campaigns, has already done more to change the face of US politics than any ruling since the 1930s.

The court of appeals found that the Montana law had similarly curtailed free speech, and the local Republican Party is now set to endorse a candidate for the bench for the first time in 77 years.

The case underlines, in a way that would be foreign to our own political culture, one dimension of the abrasive interface between politics and the judiciary that blurs distinctions between them and brings the latter to the centre stage of what is at stake in politics, not least presidential elections.

In Iowa matters have gone further. David Wiggins, a competent member of the state supreme court, is now facing a bitter re-election campaign orchestrated by conservatives because he was part of a unanimous 2009 ruling overturning the state’s prohibition on same-sex marriage.

While the state appoints judges on merit, it requires them to face periodic retention votes, a provision meant to allow only for the removal of corrupt or incompetent judges. But in 2010, in what was seen by many as a shocking intrusion of partisanship and even judicial intimidation, Wiggins’s then colleagues, chief justice Marsha Ternus and associated justices David Baker and Michael Streit, saw their own bids for retention blocked by a similar campaign.

There has been a vigorous campaign against Wiggins: prominent Republican politicians such as Louisiana governor Bobby Jindal and Rick Santorum, winner of January’s Republican Iowa caucuses, this week joined a four-day “No Wiggins” bus tour of 17 Iowa communities. But despite this, Wiggins is refusing on principle to campaign for himself.

“Campaigns are political,” he explained to the Des Moines Register. “They require candidates to count votes and appeal to donors. That system has created a big enough mess in Congress. It has no business in the courts. Judges should be beholden only to the constitution and the law.”

If only.

Wiggins’s honourable aloofness from the political fray is unfortunately a case of wishful thinking. Ironically, at a national level it is precisely the courts, specifically the supreme court via the Citizens United case and its fallout in Montana, that are paving the way for more rather than less influence-buying in elections, whether judicial or political.

Having already determined one presidential election in Bush v Gore with scant regard for the constitutional protection of states’ rights that its conservative majority once championed, the supreme court now under John Roberts has set about remaking the entire political playing field.

“Here, as distorted beyond recognition by the Roberts court,” Jamie Raskin argues in the Nation, “the First Amendment becomes not the guardian of democratic discussion but the guarantee of unequal protection for well-born and wealth-backed politicians.”

US president Barack Obama was moved to complain in his state of the nation address that the ruling opened the “floodgates for special interests – including foreign corporations – to spend without limit in our elections”.

Unhindered by campaign contribution limits, the playing field has been transformed. Raskin points to the new influence of just one industry as an example. Advertisements paid for in 2010 by entities such as the American Petroleum Institute, an oil industry trade association representing hundreds of multinationals, “helped deliver one of the greatest midterm election upsets in American history. For the first time, outside spending groups eclipsed party spending,” writes Raskin. “The young president, with his party’s ranks decimated and the House flipped into the hands of the far right, was forced to abandon much of his domestic agenda.”

With extreme weather events convulsing the globe, 86 per cent of the incoming Republicans signed up to an oil industry- sponsored pledge to oppose all climate regulation.

George W Bush used to describe himself as “the decider” but, in truth, the supreme court, perhaps even more than Congress, is “the decider” of many of the central political issues of the day, with its conservative 5-4 majority crucial to blocking liberal reform.

In the coming session it is likely to have to make critical decisions on controversial affirmative action for minorities, on states’ rights to regulate voting, and on same-sex marriage. Conservatives on the court are also said to be looking for the opportunity to reverse the Roe v Wade ruling that legalised abortion.

Obama may have succeeded in getting the key element of his healthcare reform through the court, but Roberts’ rider to his favourable ruling has raised difficult questions about the scope of the federal government’s right to legislate on a range of issues.

When voters go to the polls to choose a president – likely to have in his gift at least one supreme court nomination during the next term – they will also implicitly be voting on the future direction of a very political court.

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